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My evaluation of Skatteforvaltningen v MCML Ltd (Rev1) [2025] EWCA Civ 371 is a contact overdue, seeing as I promptly reported its consequence, instantly learn the judgment (it’s a majority one, which maybe explains the prolonged dialogue by Nugee LJ (who discovered himself within the minority), and wrote up on define on the identical day. However then I bought distracted.
Good abstract is out there from MCML’s profitable counsel right here.
The Court docket of Attraction (who as I predicted granted permission to attraction after the decide initially refused PTA) has in essence overturned the try at resurrecting the related declare with a special qualification, making use of situation estoppel (arising from a precept of legislation). This consequence IMO is correct: see my important feedback of the try at resurrecting the declare right here.
Nugee LJ would have allowed the attraction on the bottom of situation estoppel save for a really small variety of claims that are based mostly on transactions not pleaded within the 2018 proceedings; however would dismiss the attraction as far as based mostly on abuse of course of. Newey and Popplewell LJJ agree with him on abuse of course of, however on situation estoppel they allowed the attraction in relation to all of the claims.
All three reject the arguments based mostly on abuse of course of. Henderson v Henderson abuse basically precludes a celebration from elevating in subsequent proceedings issues which weren’t, however may and will have been raised within the earlier ones. It’s now seemingly accepted that SKAT’s requalification of a tax declare to a fraud declare was justified basically resulting from its not having the ability to be correctly conscious of the fraud ingredient as a result of sheer dimension of the related discovery materials which contained the indication of fraud.
Nonetheless Newey J and Popplewell LJJ held (all three LJJ nb referring to Indian and Australian authorities) that situation estoppel gives MCML with a whole defence to the proceedings, and that situation estoppel can come up from determinations on factors of legislation in addition to factors of truth.
As Casemine neatly summarise right here,
the willpower made by Andrew Baker J – that SKAT’s non-public legislation claims have been in substance geared toward imposing the Danish state’s sovereign proper to tax (and thus fell beneath the overseas income rule) – was elementary and will bind the events in subsequent litigation.
Geert.
https://x.com/GAVClaw/standing/1909167174263914789
